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  • Sale of 5 nursing homes and 2 hospice companies

Trends in the Massachusetts Department of Environmental Protection?s 21E Audit Program

Ann Sobolewski March 1, 2010

The Department of Environmental Protection (DEP) has the authority to conduct audits of sites that were officially “closed” under the Chapter 21E, the Massachusetts “superfund” law.  Recently, two types of audits have shone increased use by the DEP: 1) sites that were closed through the implementation of a Notice of Activity and Use Limitation (AUL)  are being audited for AUL compliance and 2) sites with residual contamination are being audited for vapor infiltration.  Both types of audit require participation by the property owner and, particularly in the case of the AUL audits, advance planning can help avoid significant audit issues.

Right to Audit

Many property owners believe that their participation in the 21E program terminates forever once their environmental professional files a Response Action Outcome statement (RAO) with the DEP.  Most filings do signal the end of the property’s active remediation, but the DEP retains the right to audit that RAO.  Once two years have passed since the submission of a RAO, a random audit is not permitted, and a targeted audit is not permitted more than five years after the submission of the RAO, unless the DEP has reason to believe, among other things, that the site may not have achieved a level of no significant risk.  310 CMR 40.1110(3)-(4).  Sites with AUL’s can be the subject of a random or targeted audit at any time, the two and five year limitations do not apply.  310 CMR 40.1110(5).

Noncompliance discovered in an audit is considered a failure to comply with Chapter 21E’s implementing regulations, the Massachusetts Contingency Plan (“MCP”), and can become the basis for an enforcement action by the DEP.  Administrative penalties, in the amount of $25,000 per day, can be assessed by the DEP for violations of an AUL or the MCP.

AUL Audits

Chapter 21E and the MCP allow a site to be closed without reducing the level of oil and hazardous material to background provided that an acceptable AUL is imposed on the property to prevent contact with the residual contamination.  AUL’s can be created by the property owner and their environmental professionals without prior review or approval by the DEP.

Generally, an AUL prohibits activities that would allow contact with the soil in the area covered by the AUL, mandates a barrier between the contaminated area and the occupied areas, requires the existence of a health and safety plan that would used if any excavation is to occur on the property and imposes notification requirements to tenants and future owners.

AUL audits are likely to include a review of the recorded AUL documentation and a field inspection of the property.  The paper review checks for compliance with the regulations governing AUL content and recording obligations.  The site inspection check whether the activities and uses occurring on the property are permitted by the AUL; whether there are any activities and uses inconsistent with the terms of the AUL and whether there is compliance with the ongoing obligations in the AUL.  For example, an AUL will typically prevent soil disturbance in specified areas without a soil management plan and a health and safety plan.  The field inspection could reveal the presence of a recently constructed addition on a property, or other evidence of soil disturbance.  The property owner must then show that the soil disturbance or excavation complied with the restrictions of the AUL.  In another instance, an AUL may require that the site pavement be maintained in good condition, this would restrict access to subsurface soils.  Deteriorating and damaged pavement, that would not provide a barrier between people and the subsurface soil, would be seen in a field inspection and considered a violation.

Compliance with an AUL is not a difficult standard for a property owner to meet provided that the owner and any individuals responsible for the operation and maintenance of the property are knowledgeable of their specific AUL requirements.  The adoption of written procedures that reflect the requirements of the AUL would assist in demonstrating compliance should there be an audit.  For example, a protocol that conveys information about the AUL to tenants contemporaneously with the execution of the lease would assist in ensuring compliance with that requirement.  Similarly, a procedure identifying the environmental professional to contact first, with an environmental health and safety plan, when there is a proposal to perform utility or other underground maintenance work, is beneficial.

Ideally, the creation of written procedures and a critical assessment of a property’s actual compliance with the terms of the AUL, should be developed prior to receipt of a compliance assistance letter or Notice of Audit from the DEP.  Proactive planning in anticipation of an audit will reduce risk and uncertainty.

Vapor Intrusion Audits

In 2006, the DEP revised the standards applicable to sites where the contaminant tetrachloroethylene (PCE) is present in groundwater.  These revisions significantly reduced the allowable levels of PCE in groundwater and were based on the belief that PCE in groundwater can pass into a building’s indoor air when present at lower levels than previously allowed.  As part of a comprehensive new attempt to address and mitigate vapor intrusion, the DEP reviewed the documentation for approximately 200 sites that were “closed” prior to 2006 and met the following conditions: PCE was present in groundwater at levels meeting a certain range, the depth to groundwater was 15 feet or less, and the indoor air pathway had not been fully analyzed.

Approximately 100 of the reviewed sites are, or will be, the subject of an audit.  Although it is possible that a vapor intrusion Audit can lead to a determination that the work was adequately performed and no additional actions are required, our review of audit issues suggests that, a property who receives a Notice of Audit because of vapor intrusion issues should expect that the subsequent Notice of Audit Findings will require some level of additional environmental review and analysis.

Unfortunately, a comprehensive assessment and guidance document approved by the Department for indoor air/vapor intrusion does not yet exist.  The DEP’s Indoor Air Working Group has been tasked with formulating such guidance, but it has not yet been finalized.  Without uniform guidance, environmental professionals responding to a Notice of Audit Findings will use their own interpretations of the regulations and those interpretations may not be accepted by the DEP.  Therefore, we recommend that any property owner with a notice of audit findings encourage their environmental professional to vet their proposed assessment and mitigation, if any, with the DEP prior to commencing work.  Tailoring the environmental assessment and response to the concerns of the DEP can reduce risk and the possibility of additional requirements. 

Plan Ahead –Don’t Just Respond 

Given the current enforcement climate, owners of property that was the subject of a Chapter 21E clean up should take the affirmative step of assessing compliance and the likelihood of an audit.  By acting, rather than just reacting, a property owner can lessen risk.

1 There are three types of activity and use limitation allowed in the Massachusetts Contingency Plan: 1) a grant of Environmental Restriction; 2) an Environmental Restriction that is imposed on the property by the DEP and; 3) a Notice of Activity and Use Limitation.  310 CMR 40.1070.  This alert uses the term AUL to refer to the third category, a Notice of Activity and Use Limitation prepared by an environmental professional and recorded by the property owner without DEP’s prior involvement.

This Alert is provided for information purposes only, and does not constitute legal advice.  According to Mass. SJC Rule 3:07, this material may be considered advertising. ©2010 Posternak Blankstein & Lund LLP.  All rights reserved.

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